The Case for Sotomayor

I was not planning to say anything about the candidates to replace Justice Souter. Nevertheless, I feel compelled to do so after reading Jeffrey Rosen’s piece in the New Republic entitled “The Case Against Sotomayor.” (I’m sorry I can’t link to it here, but my home computer won’t allow me to do that for some reason.) Rosen’s negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate.

I have known the Judge for thirteen years. After my first year in law school, I was an intern in her chambers when she was a District Court judge. A few years after that, I was a clerk on the Second Circuit, where my judge sat with Judge Sotomayor on many panels and I observed oral arguments in which she was involved. And since then I have visited and spoken with her frequently on a range of issues. Thus, I feel like I have a special authority to talk about her qualifications.

Now I could spend plenty of time telling you what a terrific person the Judge is, but that is not the object of Rosen’s criticism. (Or, more accurately, the criticism of various anonymous folks– what courage they have!) First, Rosen relates the view that “she is kind of a bully.” (This is the same charge that Laura Ingraham made yesterday on Fox News Sunday.) That is completely false, unless bully is some kind of new code for “asks probing questions.” One one occasion I sat through a jury trial that the Judge presided over where the lawyers on both sides were very green. While I could tell that she was perplexed by their performance, she was unfailingly courteous to them. After the trial was over, she invited them back and spent considerable time talking with them about trial strategy (she was a prosecutor for several years) to help them out in the future. I also observed her conduct of settlement negotiations (in her discovery management role) and saw how patient and effective she can be in that context, which I think will serve her well if she gets the Court appointment. With respect to appellate argument, I never saw anything but the best behavior from her, even in cases (and there were a few) where I did not agree with the position that she took or where the lawyers arguing before the panel were clueless. Accordingly, the idea that she does not have an appropriate judicial temperament is absurd. I would instead describe her as politically savvy.

Second, Rosen conveys the view that the Judge is “not that smart” or that her opinions are not “clean or tight.” While I have not read every opinion she has written over the last seventeen years, once again this criticism is not at all consistent with what I know and with the opinions that I’ve read. The bottom line is that I have always been enormously impressed by her intellect, which is why I’ve always been eager to seek out her views on matters of professional concern. My academic interest in trademark law, for instance, got started from conversations that I had with her about her trademark practice when she was at her firm. It’s difficult to give you a brief anecdote with the takeaway of, “Hey, she’s really smart,” but Rosen’s collection of quotes sound like little more than sour grapes to me.

To be fair. Rosen does qualify his essay by quoting some positive comments about the Judge and by pointing out that he does not know enough about her to reach a conclusion. So I hope this post is helpful for him, especially as it’s actually on the record.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

34 Responses

From Almanac of the Federal Judiciary attorneys’ entries: “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She if overly aggressive-not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system-as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Sir, your comments are exactly what I would expect from an acolyte and an admirer. Damn the facts, discount the opinions and observations of others who have to deal with the her honor on her terms in her courtroom where they are just the “little people.”

I am no fan of anonymous attacks, and have been on the receiving end of my fair share. But here, it is pretty understandable, no? She is a sitting judge who might be promoted to even greater power. What lawyer in his right mind is going to criticize her on the record? Anonymity here seems like prudence, not cowardice.

These complaints about Sotomayor being “excitable” and “overly aggressive” (two of the complaints about Sotomayor that the Almanac of the Federal Judiciary reported) may well reflect gender bias. I don’t have the numbers on me, but I recall seeing that under 20% of federal appellate judges are female. I did a quick Westlaw search, and of the appellate judges called a “bully” or accused of similar words (outburst, intemperate, temperamental, discourteous, or unpleasant), 4 of 10 (40%, for those lacking a calculator) were women.

Obviously I won’t stand by this as an empirical study, but anyone with experience in workplace evaluations, student evaluations, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc.

Drop the “she’s being criticized for her temperament because she’s a woman” defense, Scott. It is lame.

If you want to see Sotomayor’s temperament in action, watch her mooting GW law students on C-SPAN. Her temperament is just fine and her intelligence and graciousness is on display. Indeed, she is mooting students with Guido Calabresi, former dean of Yale Law school, and John Roberts, current Chief Justice of the Supreme Court. You can see for yourself if she has the desired intellect. Here is the link:

To Scott’s observation about possible gender bias I’ll add that the criticisms of Sotomayor’s temperment and intellect also seem to reflect stereotypes of Latinas/os. Without insisting that’s what is going on here, I do think that some element of (conscious or unconscious) bias cannot be ruled out.

It could be bias against the fact that she is a divorcee and has no kids. In any event, attacking potential bias when you have an objective recording of her behavior that any fair-minded individual could consult seems rather obtuse. If you would like to see how she would behave on an appellate panel with Chief Justice Roberts, we have direct evidence.

I’ve argued three times before Sotomayor and she’s ruled against me twice and I’d still rather have her on a panel than anyone else in the circuit (more or less – we are lucky to have a great bench with some more conservative than others but no idealogues, IMHO). I agree with the comment that “bully” is an epithet aimed at her incisive questioning combined with her gender. I can think of any number of bombastic male screamers I’ve seen on the bench over the years, and her approach is nothing like that. Perhaps in the minds of some, a lack of demureness in a woman is tantamount to aggression. She is not modest in her approach, but never rude or intemperate.

I’m so glad you wrote this post, because the TNR piece is complete nonsense inexplicably animated by GOP talking points masquerading as anonymous sources, or perhaps planted on behalf of another would-be nominee.

Sotomayor’s questioning is always probing and never abusive … In fact, judges who don’t ask questions are several orders of magnitude scarier than those who do. The attacks on Sotomayor’s intellect are particularly incorrect, and are filthy for all the reasons discussed. The idea that she “gets it wrong” as measured by a bunch of Republican appointees put on the bench 25 years ago is also really silly.

Frank, I’m not sure what you think is “obtuse” and “lame”: (1) to assert the hard-to-dispute fact that women who are aggressive are criticized for it more often than men are for the same traits? (2) to assert that point 1 is supported by my factual finding that female appellate judges draw criticism for aggressiveness (or similar traits) at twice the rate of men?

As for intellect, I’ve read Sotomayor opinions, and they’re impressive. Gerard Maglioccca thinks the same and he’s one of the smartest guys I’ve ever met; until I hear that you have some expertise in a relevant field, your assertions about her “intellect” aren’t terribly persuasive.

And do you even get the irony of you using name-calling in support of your argument against someone ELSE’S “temperament”?

I’m sure Judge Sotomayor can be very gracious in a law school moot court. But the problem is this: All you focused on in your first two comments was the fact that she was a woman. You assumed that because an unscientific survey showed a disproportion, Judge Sotomayor was unfairly criticized. You cited no other evidence, and the evidence you did bring forth to support your conclusions was, quite frankly, insubstantial.

We can quibble about the term “lame” if you choose, but using that term to describe your argument is not name calling. It simply means you did not make out a prima facie case.

Your comment was the equivalent of saying that no one may criticize a woman. This might work in academia, but you’re in the blogoshere now. If you hope to be successful, you will have to take your game to a higher level.

In your second comment you criticize Justice Scalia for the same things that others have criticized Judge Sotomayor for. If you believe the criticism of Judge Sotomayor is based on the fact that she’s a woman, it will take some fancy footwork for you to get around the objection that your criticism of Justce Scalia is based on stereotypes of Italian men.

Eric Fink,

Judge Marshall (9th Circuit) is also a Hispanic female. She doesn’t get that reaction.

“This might work in academia, but you’re in the blogoshere now. If you hope to be successful, you will have to take your game to a higher level.”

I know nothing about Sotomayer, but this comment is outstanding. Yeah, Moss, you may have succeeded in law school, placed articles in top journals, but now you must face the keen minds who post stuff on the internets!

until I hear that you have some expertise in a relevant field, your assertions about her “intellect” aren’t terribly persuasive.

1. I had not at the time made any assertions about Sotomayor’s intellect. My entire point then was that, rather than speculate about the subconscious workings of others’ minds, you could examine direct evidence of her behavior on a video recording that is publicly available. The video is of the requisite context (an appellate moot), and shows what Sotomayor would be like in the presence of the sitting Chief Justice of the Supreme Court. Apparently, being a legal academic means ignoring direct evidence and speculating about the bias of other people’s cognitive processes instead. I did not realize that publishing articles about employment discrimination in student-edited law reviews transformed one into a cognitive scientist whose experiments passed the rigorous standards of peer-review.

2. I may not be a legal academic, but I probably have more legal experience than you in appeals and trial courts, as well as in BigLaw. I have also met Sotomayor. I spoke to her for less than five minutes. She was nice and seemed smart.

3. I hypothesize that Scott Moss is biased in favor of reading gender bias into everything, because dealing with gender bias is one of his professional specializations. But, of course, according to Scott Moss, my hypothesis must be unsound, because I presently work in the private sector.

…All you focused on in your first two comments was the fact that she was a woman. You assumed that because an unscientific survey showed a disproportion [number of complaints against female judges], Judge Sotomayor was unfairly criticized. You cited no other evidence, and the evidence you did bring forth to support your conclusions was, quite frankly, insubstantial.

There are no such things as “scientific” surveys for issues such as these. There is no way to force a representative population of her peers to make an assessment of her character; self-selection is unavoidable. Moss at least, made the effort to base his assertions on something. Yours are still unbounded by even “insubstantial” data. Your retreat into flowery (really pompous) language after initially calling him lame suggests that you are well aware of the bogus nature of your assertions.

I am the one who used the term “lame,” and I did so because speculation about the subconscious bias of other people without any evidence is unnecessary, potentially harmful, and impossible to defend against. (“I deny that my subconscious operates how you say it does!”) By contrast, Glenn Greenwald has taken actual statements made by NRO contributors calling Sotomayor “dumb and obnoxious” multiple times. No speculation needed. The words are right there in the pixels.

I also haven’t made any assertions about Sotomayor, other than that she seemed smart and nice when I spoke to her. What I do believe is that if you’d like to judge for yourself, look at a videotape of her during oral argument at a public moot or a notable Second Circuit appeal broadcast on C-SPAN and decide for yourself. There’s nothing pompous about suggesting that we all might independently assess the direct evidence available to all before we make potentially damaging claims to others’ reputations.

I am the one who used the term “lame,” and I did so because speculation about the subconscious bias of other people without any evidence is unnecessary, potentially harmful, and impossible to defend against. (“I deny that my subconscious operates how you say it does!”) By contrast, Glenn Greenwald has taken actual statements made by NRO contributors calling Sotomayor “dumb and obnoxious” multiple times. No speculation needed. The words are right there in the pixels.

I also haven’t made any assertions about Sotomayor, other than that she seemed smart and nice when I spoke to her. What I do believe is that if you’d like to judge for yourself, look at a videotape of her during oral argument at a public moot or a notable Second Circuit appeal broadcast on C-SPAN and decide for yourself. There’s nothing pompous about suggesting that we all might independently assess the direct evidence available to all before we make potentially damaging claims to others’ reputations.

I watched that C-SPAN video and found absolutely nothing out of the ordinary in Sotomayor’s demeanor or level of questioning. She was just a dash quieter than her male colleagues (incl, Chief Justice Roberts), and in the end, she was fairly effusive in her praise of the students before her. All in all, I couldn’t discern much to dislike in her from this one video.

One thing I did find myself wondering was how Justice Calabresi’s various lines of questioning might have been received had they come from the mouth of Sotomayor instead. Bias is tricky matter.

@Eric Fink
“Your comment was the equivalent of saying that no one may criticize a woman.”

Uh, no, it wasn’t.

“This might work in academia, but you’re in the blogoshere now. If you hope to be successful, you will have to take your game to a higher level.”

This should have been a tongue-in-cheek comment, but I fear it wasn’t.

“In your second comment you criticize Justice Scalia for the same things that others have criticized Judge Sotomayor for.”

Uh, no, he didn’t.

“If you believe the criticism of Judge Sotomayor is based on the fact that she’s a woman, it will take some fancy footwork for you to get around the objection that your criticism of Justce Scalia is based on stereotypes of Italian men.”

Just to clear the record, “AYY” (@15 above) is not me. He (yeah, I’m gonna go out on a limb and presume that AYY is a “he”) mentions me by name at the end of his comment because he was responding to my earlier comment (@10).

So, no offense taken from Joe Slater. And I agree with Marcel Kincaid.

Why “sour grapes”? I keep seeing references to “sour grapes” in connection with this controversy, but I don’t understand what desirable thing is being disparaged by someone who can’t attain that desirable thing. If Sotomayor gets passed over and then says the Supreme Court is for idiots, she can then be rightfully accused of exhibiting “sour grapes.” Right?

When women are observed and evaluated, inevitably their bullying personalities and inappropriate aggressiveness are revealed. Their manipulative tactics and biased judgment removes them from consideration for leadership positions. Most women simply are horrible to work with. Or so says all the office boys.

You really are stupid, aren’t you? You made a number of assertions that not only are unsubstantiated, but are prima facie false — at the very least you would need to provide some sort of argument for your inferences. Byt simply reiterating that your assertions were true, you lose the game.

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